|TITLE||Chandramohan Ramchandra Patil & Ors. Vs. Bapu Koyappa Patil (Dead) through LRs.& Ors.|
|CITATION||Appeal (civil) 9393 of 1995|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice Brijesh Kumar and Justice D.M. Dharmadhikari|
|DATE OF JUDGEMENT||19.02.2003|
In the present case, the Apex Court applied Order 41 Rule 4 of the Code of Civil Procedure and observed, “the appellate court can, by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code Could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non-appealing plaintiffs and the defendants.”
The facts of the case are as follows: The present Appellants were Defendants before the Trial Court in suit for partition instituted in the Court of Civil Judge. The suit filed by the deceased Plaintiff (represented by his legal representatives impleaded as Respondents) for partition of the erstwhile Watan or Inam lands of his family was dismissed by the Trial Court. The First Appellate Court by judgment of reversal decreed the suit of the Plaintiff. The High Court confirmed it in second appeal recognising the Plaintiff’s right of partition of the suit lands to the extent of 1/3 share. The preliminary decree was framed for passing a final decree and grant of separate possession.
The main issues in the case were:
- Whether or not the Plaintiff-Respondent had established his relationship
- Whether or not the Plaintiff was entitled to claim partition.
- Whether or not the appeal was maintainable even though not all legal representatives preferred an appeal.
CONTENTIONS OF THE PARTIES
The Defendants contended that the original deceased Plaintiff Bapu Koyappa Patil failed to prove his relationship with the main ancestor Suryaji, who was the first Watandar. Hence the Trial Court rightly negatived his claim for partition to the extent of 1/3rd of the share.
It was also urged that the courts below ought to have dismissed the suit for partition on the ground that it was barred by limitation. The predecessors-in-title of the Defendants had prescribed his adverse possession on the land. It was further contended that not all the legal representatives of the original Plaintiff had preferred appeal against the dismissal of suit by the trial court and hence the appeal wasn’t maintainable.
SUMMARY OF COURT DECISION AND JUDGEMENT
The Supreme Court made the following observations:
- The High Court took due notice of the evidence. Thus, it was not not open to the Defendants to raise a ground on the correctness of the finding of fact on the issue of relationship. The evidence of pedigree relied by the first appellate court and the High Court was relevant and admissible to prove relationship under Section 30 (b) and Section 50 of the Evidence Act.
- There arise two questions. First, whether the plaintiff respondent has established his relationship (as given in the pedigree). Secondly, whether the plaintiff is entitled to claim partition? The High Court substantially answered the questions. The Supreme Court held that there was more than substantial compliance of the provisions of Section 100 of Code of Civil Procedure and a prayer for remand is absolutely without any merit.
- In a suit for partition, Plaintiff and Defendants are parties of equal status. If the right of partition has been recognised and upheld by the court, merely because only some of the plaintiffs had appealed and not all, the court was not powerless. It could invoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of Code of Civil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.
The Apex Court dismissed the appeal.
Order 41 Rule 4 reads as follows:
“One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceed on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”
In Lal Chand (Dead) By L.Rs. v. Radha Kishan, the Court observed that the Trial Court and High Court must give due regard to O41 R4. The said order which gives the Appellate Court the power to reverse or vary the decree, even if appeal is preferred by only one plaintiff or defendant. Thus, the present case was decided correctly in view of the law and precedents.
The fact that all parties to a suit do not subsequently prefer an appeal does not take away the statutory right of the other parties to appeal. Order 41 Rule 4 ensures the protection of this right.
–END OF CASE COMMENT–